What is
meant by res judicata was well explained in Asia
Commercial Finance (M) Berhad v. Kawal Teliti Sdn. Bhd. [1995] 3 CLJ 783,
where Peh Swee Chin FCJ in delivering the judgment of the Court stated: “What
is res judicata? It simply means a matter adjudged, and its significance lies
in its effect of creating an estoppel per rem judicature. When a matter between
two parties has been adjudicated by a Court of competent jurisdiction, the
parties and their privies are not permitted to litigate once more the res
judicata, because the judgment becomes the truth between such parties, or in
other words, the parties should accept it as the truth; res judicata pro
veritate accipitur. The public policy of the law is that it is in the public
interest that there should be finality in litigation -interest rei publicae ut
sit finis litium . It is only just that no one ought to be vexed twice for the
same cause of action -nemo debet bis vexari

pro eadem
causa. Both maxims are the rationales for the doctrine of res judicata, but the
earlier maxim has the further elevated status of a question of public policy.”
See also the case of Kandiah Peter A/L
Kandiah v. Public Bank Bhd. [1993]4
CLJ 332.

Thus, for
the doctrine of res judicata to apply, the same issue must have been raised and
decided in an earlier proceeding or action in which the parties are
represented. And for that reason, it is not open for the same issue to be
litigated afresh between the same parties. This doctrine is based on the public
policy that there must be finality and conclusiveness in judicial decisions and
the right of the individual from being vexed by multiplicity of suits at the
instance of an opponent. In Satyadhyan
Ghosal and others v. Smt. Deorajin Debi and another 1960 AIR S.C. 941, the Indian
Supreme Court stated the principle as follows:“(7) The principle of res judicata is based on the need of giving a
finality to judicial decisions. What it says is that once a res is judicata, it
shall not be adjudged again. Primarily it applies as between past litigation
and future litigation. When a matter –whether on a question of fact or a
question of law –has been decided between two parties in one suit or proceeding
and the decision is final, either because no appeal was taken to a higher court
or because the appeal was dismissed, or no appeal lies, neither party will be
allowed in a future suit or proceeding between the same parties to canvass the
matter again.”

In Henderson v. Henderson [1843] 3 Hare 100,
67 ER 313, Vigram VC expressed the view that “The plea of res judicata applies
not only to points upon which the court was actually required by the parties to
form an opinion and pronounce a judgment, but to every point which properly belonged
to the subject of litigation, and which the parties exercising reasonable
diligent, might have brought forward at the time.” This statement came to be
known as the rule in Henderson v. Henderson.

“We cannot
over emphasize the proposition that once a judge makes a ruling, substantive or
procedural, final or interlocutory, it must be adhered to and may not be
reopened willy-nilly.”

The parties
are bound by the rulings of the court under the principle of res judicata. It
is also important to observe that a decision given by a court at one stage on a
particular issue is binding on it at a later stage in the same or subsequent
suit.

As observed above,
for res judicata to apply, the issue in the second or subsequent application
must be the same with the issue decided earlier by the court.

IN THE COURT OF APPEAL, MALAYSIA AT
PUTRAJAYA

APPELLATE JURISDICTION

CIVIL APPEAL NO:
W-02(IM)(NCVC)(W)-1400-08/2014

Residence Hotels And Resorts Sdn Bhd v.

Seri Pacific Corporation Sdn Bhd

Whether res
judicata/estoppel applicable:

a) res
judicata is a substantive rule of law. It means a decision on the “merits”
which disposes once and for all of the matters decided and the same becomes the
truth between the parties, so that, except on appeal or other exceptional
circumstances such as fraud, it cannot be re-litigated between persons bound by
the judgment. The doctrine of res judicata has developed over the years to
extend to issue estoppel as well, the requirements of which are (i) that the
same question has been decided; (ii) that the judicial decision which is said
to create the estoppel was final; and

(iii) that
the parties to the judicial decision or their privies were the same persons as
the parties to the proceedings in which the estoppel is raised. We are also
mindful of the fact that it must be shown that the earlier judgment necessarily
and with precision determined the point in issues to constitute res judicata;

b) the
parties cannot raise a second time in the same suit issues that have already
been determined earlier expressly or by necessary implication. Additionally,
where res judicata is not strictly established or where estoppel res judicatum is
not made out but nevertheless, the circumstances are such as to render any
re-agitation of the questions formerly adjudicated upon, a scandal and an
abuse, the court would not hesitate to dismiss the action;